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Manufacturing more powers for the environment agency?

Manufacturers should be aware that enhanced environmental enforcement powers may be on the way. The proposed changes may have slipped under the radar, as they are included in a consultation document, issued by the Department for Environment, Food & Rural Affairs (Defra), primarily focused on the waste industry.

The main proposals which are relevant to manufacturers are the ability for the Environment Agency to:

suspend an environmental permit where an operator has failed to meet the conditions of an enforcement notice;

take steps to remove a risk of serious pollution, whether or not a facility is under a permit; and

bring proceedings in the High Court to secure compliance with an enforcement notice without needing to first consider bringing criminal proceedings.

The consultation also asked for views on whether proposals to toughen operator competence tests for regulated waste management facilities (including more stringent requirements for technical competence, financial provision and operator performance) should be extended to any other types of regulated activity.

Of particular note is the proposal to extend the Agency’s ability to suspend an environmental permit. At present, the Agency can only issue a suspension notice where the continued operation of the regulated facility involves a risk of serious pollution. If the proposals go ahead, the Agency would be able to suspend a permit, and therefore the operation of a site, where the conditions in an enforcement notice have not been met.

There are strict deadlines for appealing against an enforcement notice. If this goes ahead it will be more important than ever for manufacturers to give prompt consideration to whether the conditions in an enforcement notice are reasonable and feasible in order to decide whether an appeal is necessary.

Defra is keen to stress that the proposals should come at no cost to legitimate operators. However, when set against the background of increasing fines for environmental offences (brought about in part by last year’s new sentencing guidelines) and a recent increase in sentencing powers for the Magistrates’ Court, the proposals underline the increasing risks associated with getting things wrong. To minimise these risks, manufacturers should:

review the conditions of any environmental permits which they hold to check for any compliance gaps; and

take swift advice if the Agency takes any form of enforcement action to ensure all necessary steps are taken to minimise potential disruption to the business.

Compare jurisdictions: Corporate Governance

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